[House Report 113-561]
[From the U.S. Government Publishing Office]
113th Congress } { Rept. 113-561
2d Session } HOUSE OF REPRESENTATIVES { Part 1
=======================================================================
PROVIDING FOR AUTHORITY TO INITIATE LITIGATION FOR ACTIONS BY THE
PRESIDENT OR OTHER EXECUTIVE BRANCH OFFICIALS INCONSISTENT WITH THEIR
DUTIES UNDER THE CONSTITUTION OF THE UNITED STATES
_______
July 28, 2014.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Sessions, from the Committee on Rules, submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H. Res. 676]
The Committee on Rules, to whom was referred the resolution
(H. Res. 676) providing for authority to initiate litigation
for actions by the President or other executive branch
officials inconsistent with their duties under the Constitution
of the United States, having considered the same, reports
favorably thereon with an amendment and recommends that the
resolution as amended be adopted.
CONTENTS
Page
Amendment........................................................ 2
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 7
Committee Consideration.......................................... 7
Committee Votes.................................................. 7
Committee Oversight Findings and Recommendations................. 13
Performance Goals and Objectives................................. 13
Advisory Committee Statement..................................... 13
Exchange of Committee Correspondence............................. 13
Section-by-Section Analysis of the Legislation................... 16
Changes in Existing House Rules Made by the Resolution, as
Reported....................................................... 16
Dissenting Views................................................. 17
amendment
The amendment is as follows:
Page 2, line 11 strike ``The Office'' and insert ``(a) The
Office''.
Page 2, after line 16, add the following:
(b) The chair of the Committee on House Administration shall cause to
be printed in the Congressional Record a statement setting forth the
aggregate amounts expended by the Office of General Counsel on outside
counsel and other experts pursuant to subsection (a) on a quarterly
basis. Such statement shall be submitted for printing not more than 30
days after the expiration of each such period.
purpose and summary
H. Res. 676 authorizes the Speaker to initiate or intervene
in one or more civil actions to seek any appropriate relief
regarding the failure of the President or any other official of
the executive branch to act in a manner consistent with that
official's duties under the Constitution and laws of the United
States with respect to implementation of the Patient Protection
and Affordable Care Act and related statutes. The resolution
also requires the Speaker notify the House upon his decision to
pursue litigation pursuant to the resolution. Further, the
Office of the General Counsel will represent the House in any
civil action conducted pursuant to this resolution and is
authorized to employ outside counsel or other experts for this
litigation, if needed. Finally, the resolution provides that
the chair of the Committee on House Administration place in the
Congressional Record quarterly statements showing the aggregate
amounts expended on outside counsel or experts during each
quarter.
background and need for legislation
The evidence gathered during the Committee's hearing
process demonstrates that the President has failed on numerous
occasions to fulfill his duty under Article II, section 3 of
the Constitution of the United States to faithfully execute the
laws passed by Congress. He has ignored certain statutes
completely, selectively enforced others, and bypassed the
legislative process to create his own laws by executive fiat.
These unilateral actions have led to a shift in the balance of
power in favor of the presidency, challenging Congress' ability
to effectively represent the American people.
Such a shift in power should alarm Members of both
political parties because it threatens the very institution of
the Congress. On July 16, 2014, in his testimony before the
Committee on Rules, Professor Jonathan Turley warned the
Committee that ``* * * the arguments that are being made today
[by this Administration] could be used [by the next President]
to nullify or suspend or change environmental laws * * * That
is what happens when you have an uber-presidency.''A lawsuit on
behalf the House of Representatives is a direct and
proportionate response to the alarming increase in executive
actions that have usurped the House's lawmaking authority under
Article I of the Constitution. Critics of the litigation have
argued that the House could attempt to use tools otherwise
available to the legislative branch to remedy executive
encroachment into legislative powers. However, those options
are inappropriate remedies to address the President's
unilateral actions, as none of them force the President to
reverse course. One suggestion was to defund agencies or
legislate again ``for emphasis''. However, the Founders never
intended that Congress legislate twice just to ensure its laws
have meaning.
Much has been made of whether the House would be granted
standing by the court to litigate the merits of the case. The
minority has pointed to a few cases in which one Member of
Congress or a small group of Members have not been granted
standing. Those cases can be distinguished from the litigation
contemplated by H. Res. 676. The resolution, if adopted,
signifies that the House has, by an affirmative vote by a
majority of its Members, explicitly authorized the litigation
to defend its role in our tripartite system.
The courts have recognized and utilized their
constitutional role in upholding the separation of powers
between the legislative branch and the executive branch since
Marbury v. Madison. A House of Congress is the natural and
appropriate plaintiff to urge the courts to enforce the
separation of powers. If the courts were to deny standing, the
President's power would go unchecked. Such a ruling would
invite this President and his successors to seize even more
congressional authority at the expense of the Constitution that
all Members of Congress--and the President--took an oath to
defend.
Constitutional Basis for the Suit
Separation of Powers Protects Liberty
The Constitution limits the reach of the three branches of
government, ensuring that no branch encroaches upon the others'
authority. Simply put, Congress makes the law, the President
enforces the law, and the Judiciary interprets the law. The
bedrock of the Constitution remains the separation of powers.
Professor Turley testified before the House Judiciary Committee
on February 26, 2014 that `` [t]he policing of the lines of
separation is the single most important duty of the courts
since the separation of powers was designed as a protection of
individual liberty. It is the concentration of authority in any
one branch that threatens individual rights.''
The President--a constitutional law professor himself--
understood this point well. At the 2008 Saddleback Presidential
Candidates Forum, then-Senator Obama stated that ``[o]ne of the
most important jobs of * * * the Supreme Court is to guard
against the encroachment of the Executive Branch on * * * the
power of the other branches. And, I think [the Chief Justice]
has been a little bit too willing and eager to give an
administration, whether it's mine or George Bush's, more power
than I think the Constitution originally intended.''
The Take Care Clause and its Historical Role in Guarding Against
Tyranny
The separation of powers laid out in the Constitution
reflects the Framers' fear of an exceedingly powerful
executive. They did not want a repeat of English history in
which the Monarchy was able to suspend laws without
Parliament's consent. The very first article of the English
Bill of Rights, which served as a template for our
Constitution, stated that ``the pretended power of suspending
of laws, or the execution of laws, by regal authority, without
consent of parliament, is illegal.''
Article II, section 3 of the Constitution, known as the
``Take Care Clause,'' limits the President's power by providing
that he ``shall take Care that the Laws be faithfully
executed.'' The clause imposes an affirmative duty on the
President, not a discretionary power. Professor Michael W.
McConnell of Stanford Law School noted in a July 8, 2013 Wall
Street Journal article that it acts as a check on the ``Vesting
Clause'', which gives the President discretion about how to
enforce the law, not whether to do so.
The Take Care Clause requires the President to enforce all
constitutionally valid laws, regardless of his view of their
wisdom. Indeed, the Justice Department's Office of Legal
Counsel (OLC), which advises the President, has opined
correctly over the years that the President has no authority to
``refuse to enforce a statute he opposes for policy reasons.''
Professor McConnell pointed out in his article that,
``Attorneys general under Presidents Carter, Reagan, both
Bushes and Clinton all agreed on this point.''
Executive Overreach by the President
In his State of the Union address, the President put
Congress and the American people on notice that this would be
his ``year of action'' to implement his own policies ``with or
without Congress.'' On January 14, 2014, at his first cabinet
meeting of the year, he said he would use the ``pen and the
phone'' to do so, thereby ignoring his own passionate defense
of Congress' authority.
There has been a history of increasing executive overreach
throughout recent history, yet, according to Professor Turley's
testimony before the Committee on Judiciary, ``it has
accelerated at an alarming rate'' under President Obama.
Professor McConnell explained in the Wall Street Journal that,
``[w]ith the exception of Richard Nixon, whose refusals to
spend money appropriated by Congress were struck down by the
courts, no prior president has claimed the power to negate a
law that is concededly constitutional.'' Yet that is exactly
what this President has done.
The following list of examples of executive overreach is
not exhaustive but demonstrates the breadth of encroachment
across a wide spectrum of policy areas:
Affordable Care Act--The President has nullified
several major provisions of the Affordable Care Act (ACA). One
group of experts from the Galen Institute has identified 23
instances in which the President has unilaterally altered the
ACA. These unlawful modifications include the following
examples:
The employer mandate was delayed twice, on July 2, 2013 and
again on February 10, 2014. The Treasury Department created a
new category of employers not included in statute when it
announced that employers with 50-99 employees would be given
until 2016--two years longer than stated in law--before they
would face a penalty for failing to comply with the ACA. It
also announced that companies with 100 workers or more would
avoid a fine if they offered insurance to 70 percent of their
full time employees, which is far less than envisioned by the
ACA. The Administration also delayed the employer reporting
requirements, which are needed to effectively administer the
employer mandate, the individual mandate, and the premium tax
credits. As a result, the HHS inspector General reported that
there were 2.6 million unresolved inconsistencies because ``the
eligibility system was not fully operational.''
Following the July 2013 delay of the mandate and reporting
requirements, the House passed H.R. 2667, the Authority for
Mandate Delay Act, to codify the President's unilateral action.
However, the President threatened to veto the bill because it
was ``unnecessary,'' and the Senate has failed to consider it.
Moreover, the President instructed States and health
insurers that they are free, in some instances, to ignore the
ACA's clear language regarding obligatory coverage
requirements. The ACA states that these coverage requirements
were to go into effect on January 1, 2014. On November 14,
2013, President Obama made this announcement despite imminent
House consideration of H.R. 3350, the Keep Your Health Plan Act
of 2013, to allow people to keep their existing coverage. The
President threatened to veto H.R. 3350 despite the fact that it
codified part of the President's unilateral action. The Senate
has failed to consider H.R. 3350.
Transfer of the Taliban Five--The President failed
to provide the statutorily required advance notice to Congress
of the transfer of five senior Taliban commanders detained at
Guantanamo Bay in exchange for the release of Army Sergeant
Bowe Bergdahl, who was held in captivity by the Taliban.
Section 1035(d) of the National Defense Authorization Act of
2014 provides that the Secretary of Defense must notify the
appropriate committees of Congress not later than 30 days
before the transfer or release of a detainee. The President's
failure to provide the appropriate committees with 30-days'
notice violated the law's clear statutory text.
DREAM Act--While Congress was debating reforms
that could affect unlawful immigrants who were brought to this
country as children, the President, through a memorandum from
the Department of Homeland Security, unilaterally enacted his
version of the DREAM Act by ordering officials to defer action
on deportation for certain children. He did so even though he
had previously gone on record to say that such a move would be
outside his constitutional authority.
No Child Left Behind--Rather than work with
Congress to enact permanent changes to the No Child Left Behind
education law, the President unilaterally waived its
accountability provisions. In doing so, he created a list of
requirements to qualify for the waiver, essentially rewriting
the law. In announcing the move to grant two additional waivers
in a July 6, 2012 press release, the Department of Education
cited ``congressional inaction'' as the reason for which it
acted unilaterally.
Temporary Assistance for Needy Families--When the
President objected to the Federal Temporary Assistance for
Needy Families work requirements in the bipartisan welfare
reform law, he informed States they could seek waivers of these
requirements even though the law says they cannot be waived.
The Government Accountability Office concluded that prior
Administrations as well as the Obama Administration had earlier
determined that they had no authority to waive the work
requirements given that the 1996 welfare reform ended welfare
waivers, specifically saying all states had to follow the new
work requirements.
The Supreme Court has Recently Rebuffed Executive Overreach
The President's unilateral actions have been rebuffed by
the Supreme Court in the Hobby Lobby case, the recess
appointments case, and U.A.R.G. v. E.P.A. See Burwell v. Hobby
Lobby, 13-354, 2014 WL 2921709 (U.S. June 30, 2014); N.L.R.B.
v. Noel Canning, 12-1281, 2014 WL 2882090 (U.S. June 26, 2014).
In a prominent case involving the Environmental Protection
Agency, the Supreme Court found that the executive's desire to
improve a law did not justify rewriting it. ``The power of
executing the laws necessarily includes both authority and
responsibility to resolve some questions left open by Congress
that arise during the law's administration. But it does not
include a power to revise clear statutory terms that turn out
not to work in practice.'' Util. Air Regulatory Grp. v. E.P.A.,
134 S. Ct. 2427, 2446 (2014). These cases had private
plaintiffs that suffered an injury as a result of executive
overreach and thus had standing to sue. In cases where there is
no natural private plaintiff, only a House of Congress can urge
the judicial branch to intervene.
Constitutional Standing
The Judiciary often hesitates to involve itself in
controversies between the two political branches, going so far
as to create the ``political question doctrine'' to avoid such
disputes. The doctrine reduces litigation by making it
difficult for Members of Congress or the President to file
frivolous lawsuits whenever they are merely displeased with the
actions of another branch. While courts often look suspiciously
at inter-branch suits, they must maintain their constitutional
duty to enforce the separation of powers as provided in Marbury
v. Madison.
In addition to the political question doctrine, courts have
used standing to avoid hearing the merits of inter-branch
suits. The standing requirement flows from Article III, section
2 of the Constitution, which limits Federal judicial power to
certain kinds of ``cases'' and ``controversies.'' In order to
have a ``case'' or ``controversy'' within the meaning of
Article III, the Supreme Court has identified three standing
elements: (1) an injury-in-fact (2) caused by the defendant's
conduct that (3) can be redressed by the court. In addition,
courts use prudential factors in weighing whether to grant
congressional standing.
One constitutional scholar, reasoning that the second and
third constitutional standing elements will likely be non-
issues, has made the case for congressional standing under a
scenario that addresses the ``injury-in-fact'' element.
In her testimony before the Rules Committee on July 16,
2014, Professor Elizabeth Price Foley of the Florida
International University School of Law stated that in her
reading of the case law, the House would have Article III
standing if it (a) were acting as an institution rather than a
small group of aggrieved Members and (b) if it suffered an
institutional injury in the sense that the President's
executive action caused Congress' vote on a particular issue to
be ``nullified.'' In addition, Professor Foley stated that the
courts will likely analyze whether ``prudential factors''
bolster or weaken the case for granting congressional standing.
These factors include: (a) whether the institution has explicit
authorization to bring the lawsuit; (b) whether there has been
a ``benevolent suspension'' of law in which no private
plaintiff has been harmed and in which case only Congress would
have standing; and (c) whether the legislature has exhausted
its legislative remedies against the executive.
Conclusion
This resolution authorizes the Speaker, on behalf of the
House, to take legal action against the President or other
executive branch officials for failing to faithfully execute
the law with respect to the implementation of the Patient
Protection and Affordable Care Act and related statutes. The
alarming increase in executive overreach has made such
litigation necessary. House-authorized litigation serves as a
direct and proportionate response to unilateral executive
actions that have diluted Congress' Article I power. Congress
is the sole entity entrusted by the Framers with power to make
law, as it is the body closest to the people by virtue of
elections that take place every two years. This resolution
seeks to protect Congress' constitutional prerogative and asks
the Court to fulfill its duty to guard the lines of separation
between the branches as it has done since Marbury v. Madison.
hearings
On July 16, 2014, the Committee on Rules held a legislative
hearing on a draft committee print of H. Res. ___, providing
for authority to initiate litigation for actions by the
President inconsistent with his duties under the Constitution
of the United States. The purpose of the hearing was to receive
testimony from outside experts on the separation of powers
under the Constitution and the operation of the proposed
resolution. The following witnesses testified: Walter E.
Dellinger III, Partner, O'Melveny & Myers LLP; Elizabeth Price
Foley, Professor of Law, FIU College of Law; Simon Lazarus,
Senior Counsel, Constitutional Accountability Center; and
Jonathan Turley, J.B. & Maurice C. Shapiro Professor of Public
Interest Law, George Washington University Law School.
A modified version of the resolution was later introduced
by Mr. Sessions on July 22, 2014 as H. Res. 676.
committee consideration
The Committee on Rules met on July 24, 2014 in open session
and ordered H. Res. 676, as amended, favorably reported to the
House by a record vote of 7 yeas and 4 nays, a quorum being
present.
committee votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. A
motion by Ms. Foxx to report the resolution, as amended, to the
House with a favorable recommendation was agreed to by a record
vote of 7 yeas and 4 nays, a quorum being present. The names of
Members voting for and against follow:
roll call vote no. 169
h. res. 676 (original jurisdiction)
Date: July 24, 2014.
Motion by Ms. Foxx to report the resolution, as amended, to
the House with a favorable recommendation.
Agreed to, as amended: 7 yeas and 4 nays.
----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Representative Yea Nay
----------------------------------------------------------------------------------------------------------------
Ms. Foxx, Vice Chairman....................... X Ms. Slaughter, Ranking Member... X
Mr. Bishop.................................... Mr. McGovern.................... X
Mr. Cole...................................... X Mr. Hastings.................... X
Mr. Woodall................................... X Mr. Polis....................... X
Mr. Nugent.................................... X
Mr. Webster................................... X
Ms. Ros-Lehtinen..............................
Mr. Burgess................................... X
Mr. Sessions, Chairman........................ X
---------------
Vote Total: 7 4
----------------------------------------------------------------------------------------------------------------
The committee also considered the following amendments on
which record votes were requested. The names of Members voting
for and against follow:
roll call vote no. 158
h. res. 676 (original jurisdiction)
Date: July 24, 2014.
Amendment offered by Ms. Slaughter #2, requiring the
House's General Counsel to disclose how much has been spent on
the lawsuit every week.
Not Agreed to: 4 yeas and 7 nays.
----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Representative Yea Nay
----------------------------------------------------------------------------------------------------------------
Ms. Foxx, Vice Chairman....................... X Ms. Slaughter, Ranking Member... X
Mr. Bishop.................................... Mr. McGovern.................... X
Mr. Cole...................................... X Mr. Hastings.................... X
Mr. Woodall................................... X Mr. Polis....................... X
Mr. Nugent.................................... X
Mr. Webster................................... X
Ms. Ros-Lehtinen..............................
Mr. Burgess................................... X
Mr. Sessions, Chairman........................ X
---------------
Vote Total: 4 7
----------------------------------------------------------------------------------------------------------------
roll call vote no. 159
h. res. 676 (original jurisdiction)
Date: July 24, 2014.
Amendment offered by Ms. Slaughter #3, prohibiting the
hiring of any law firms or consultants who lobby Congress.
Not Agreed to: 4 yeas and 7 nays.
----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Representative Yea Nay
----------------------------------------------------------------------------------------------------------------
Ms. Foxx, Vice Chairman....................... X Ms. Slaughter, Ranking Member... X
Mr. Bishop.................................... Mr. McGovern.................... X
Mr. Cole...................................... X Mr. Hastings.................... X
Mr. Woodall................................... X Mr. Polis....................... X
Mr. Nugent.................................... X
Mr. Webster................................... X
Ms. Ros-Lehtinen..............................
Mr. Burgess................................... X
Mr. Sessions, Chairman........................ X
---------------
Vote Total: 4 7
----------------------------------------------------------------------------------------------------------------
roll call vote no. 160
h. res. 676 (original jurisdiction)
Date: July 24, 2014.
Amendment offered by Ms. Slaughter #4, prohibiting the
hiring of any law firm or consultant who lobbies on Affordable
Care Act implementation or has any financial stake in
implementation of the Affordable Care Act to avoid a conflict
of interest.
Not Agreed to: 4 yeas and 7 nays.
----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Representative Yea Nay
----------------------------------------------------------------------------------------------------------------
Ms. Foxx, Vice Chairman....................... X Ms. Slaughter, Ranking Member... X
Mr. Bishop.................................... Mr. McGovern.................... X
Mr. Cole...................................... X Mr. Hastings.................... X
Mr. Woodall................................... X Mr. Polis....................... X
Mr. Nugent.................................... X
Mr. Webster................................... X
Ms. Ros-Lehtinen..............................
Mr. Burgess................................... X
Mr. Sessions, Chairman........................ X
---------------
Vote Total: 4 7
----------------------------------------------------------------------------------------------------------------
roll call vote no. 161
h. res. 676 (original jurisdiction)
Date: July 24, 2014.
Amendment offered by Ms. Slaughter #5, requiring the
lawsuit to be paid for using money from the budget of the
Benghazi Select Committee.
Not Agreed to: 4 yeas and 7 nays.
----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Representative Yea Nay
----------------------------------------------------------------------------------------------------------------
Ms. Foxx, Vice Chairman....................... X Ms. Slaughter, Ranking Member... X
Mr. Bishop.................................... Mr. McGovern.................... X
Mr. Cole...................................... X Mr. Hastings.................... X
Mr. Woodall................................... X Mr. Polis....................... X
Mr. Nugent.................................... X
Mr. Webster................................... X
Ms. Ros-Lehtinen..............................
Mr. Burgess................................... X
Mr. Sessions, Chairman........................ X
---------------
Vote Total: 4 7
----------------------------------------------------------------------------------------------------------------
roll call vote no. 162
h. res. 676 (original jurisdiction)
Date: July 24, 2014.
Amendment offered by Mr. Hastings of Florida #6, requiring
that the House's lawyers explain to BLAG the likelihood of
success in this lawsuit, and how they think they will overcome
the legal obstacles presented by Supreme Court precedent.
Not Agreed to: 4 yeas and 7 nays.
----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Representative Yea Nay
----------------------------------------------------------------------------------------------------------------
Ms. Foxx, Vice Chairman....................... X Ms. Slaughter, Ranking Member... X
Mr. Bishop.................................... Mr. McGovern.................... X
Mr. Cole...................................... X Mr. Hastings.................... X
Mr. Woodall................................... X Mr. Polis....................... X
Mr. Nugent.................................... X
Mr. Webster................................... X
Ms. Ros-Lehtinen..............................
Mr. Burgess................................... X
Mr. Sessions, Chairman........................ X
---------------
Vote Total: 4 7
----------------------------------------------------------------------------------------------------------------
roll call vote no. 163
h. res. 676 (original jurisdiction)
Date: July 24, 2014.
Amendment offered by Mr. Hastings of Florida #7, ensuring
that the lawsuit does not seek to prevent implementation of the
Affordable Care Act's provisions relating to: (1) young adult
coverage; (2) benefits for women; (3) protections for pre-
existing conditions; (4) small business tax credits; or, (5)
prescription discounts for seniors that close the ``donut
hole'' in Medicare.
Not Agreed to: 4 yeas and 7 nays.
----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Representative Yea Nay
----------------------------------------------------------------------------------------------------------------
Ms. Foxx, Vice Chairman....................... X Ms. Slaughter, Ranking Member... X
Mr. Bishop.................................... Mr. McGovern.................... X
Mr. Cole...................................... X Mr. Hastings.................... X
Mr. Woodall................................... X Mr. Polis....................... X
Mr. Nugent.................................... X
Mr. Webster................................... X
Ms. Ros-Lehtinen..............................
Mr. Burgess................................... X
Mr. Sessions, Chairman........................ X
---------------
Vote Total: 4 7
----------------------------------------------------------------------------------------------------------------
roll call vote no. 164
h. res. 676 (original jurisdiction)
Date: July 24, 2014.
Amendment offered by Mr. McGovern #8, requiring disclosure
of all contracts with lawyers and consultants 10 days before
they are approved.
Not Agreed to: 4 yeas and 7 nays.
----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Representative Yea Nay
----------------------------------------------------------------------------------------------------------------
Ms. Foxx, Vice Chairman....................... X Ms. Slaughter, Ranking Member... X
Mr. Bishop.................................... Mr. McGovern.................... X
Mr. Cole...................................... X Mr. Hastings.................... X
Mr. Woodall................................... X Mr. Polis....................... X
Mr. Nugent.................................... X
Mr. Webster................................... X
Ms. Ros-Lehtinen..............................
Mr. Burgess................................... X
Mr. Sessions, Chairman........................ X
---------------
Vote Total: 4 7
----------------------------------------------------------------------------------------------------------------
roll call vote no. 165
h. res. 676 (original jurisdiction)
Date: July 24, 2014.
Amendment offered by Mr. McGovern #9, ensuring that the
lawsuit does not target people in the military, veterans, or
civil servants.
Not Agreed to: 4 yeas and 7 nays.
----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Representative Yea Nay
----------------------------------------------------------------------------------------------------------------
Ms. Foxx, Vice Chairman....................... X Ms. Slaughter, Ranking Member... X
Mr. Bishop.................................... Mr. McGovern.................... X
Mr. Cole...................................... X Mr. Hastings.................... X
Mr. Woodall................................... X Mr. Polis....................... X
Mr. Nugent.................................... X
Mr. Webster................................... X
Ms. Ros-Lehtinen..............................
Mr. Burgess................................... X
Mr. Sessions, Chairman........................ X
---------------
Vote Total: 4 7
----------------------------------------------------------------------------------------------------------------
roll call vote no. 166
h. res. 676 (original jurisdiction)
Date: July 24, 2014.
Amendment offered by Mr. Polis #10, requiring disclosure of
where the taxpayer money paying for the lawsuit is coming from,
and which programs and offices' budgets are being reduced to
pay for it.
Not Agreed to: 4 yeas and 7 nays.
----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Representative Yea Nay
----------------------------------------------------------------------------------------------------------------
Ms. Foxx, Vice Chairman....................... X Ms. Slaughter, Ranking Member... X
Mr. Bishop.................................... Mr. McGovern.................... X
Mr. Cole...................................... X Mr. Hastings.................... X
Mr. Woodall................................... X Mr. Polis....................... X
Mr. Nugent.................................... X
Mr. Webster................................... X
Ms. Ros-Lehtinen..............................
Mr. Burgess................................... X
Mr. Sessions, Chairman........................ X
---------------
Vote Total: 4 7
----------------------------------------------------------------------------------------------------------------
roll call vote no. 167
h. res. 676 (original jurisdiction)
Date: July 24, 2014.
Amendment offered by Mr. Polis #11, requiring the House to
bring up, debate, and vote on bipartisan comprehensive
immigration reform.
Not Agreed to: 4 yeas and 7 nays.
----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Representative Yea Nay
----------------------------------------------------------------------------------------------------------------
Ms. Foxx, Vice Chairman....................... X Ms. Slaughter, Ranking Member... X
Mr. Bishop.................................... Mr. McGovern.................... X
Mr. Cole...................................... X Mr. Hastings.................... X
Mr. Woodall................................... X Mr. Polis....................... X
Mr. Nugent.................................... X
Mr. Webster................................... X
Ms. Ros-Lehtinen..............................
Mr. Burgess................................... X
Mr. Sessions, Chairman........................ X
---------------
Vote Total: 4 7
----------------------------------------------------------------------------------------------------------------
roll call vote no. 168
h. res. 676 (original jurisdiction)
Date: July 24, 2014.
Amendment offered by Ms. Slaughter #12, striking language
regarding ``any other related provision of law''.
Not Agreed to: 4 yeas and 7 nays.
----------------------------------------------------------------------------------------------------------------
Representative Yea Nay Representative Yea Nay
----------------------------------------------------------------------------------------------------------------
Ms. Foxx, Vice Chairman....................... X Ms. Slaughter, Ranking Member... X
Mr. Bishop.................................... Mr. McGovern.................... X
Mr. Cole...................................... X Mr. Hastings.................... X
Mr. Woodall................................... X Mr. Polis....................... X
Mr. Nugent.................................... X
Mr. Webster................................... X
Ms. Ros-Lehtinen..............................
Mr. Burgess................................... X
Mr. Sessions, Chairman........................ X
---------------
Vote Total: 4 7
----------------------------------------------------------------------------------------------------------------
The following amendment was disposed of by a voice vote:
Amendment offered by Mr. Nugent #1, requiring that the
chair of the Committee on House Administration on a quarterly
basis place a statement in the Congressional Record setting
forth the aggregate amounts expended by the Office of General
Counsel on outside counsel and other experts.
committee oversight findings and recommendations
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee made findings and
recommendations that are reflected in this report.
performance goals and objectives
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, the Committee establishes the
following performance related goals and objectives for this
legislation:
The resolution will ensure the Speaker has the proper
authority to take legal action, through the Office of General
Counsel, on behalf of the House of Representatives, regarding
the failure of the President or any other official of the
executive branch to act in a manner consistent with that
official's duties under the Constitution and laws of the United
States with respect to implementation of the Patient Protection
and Affordable Care Act and related statutes.
advisory committee statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
exchange of committee correspondence
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
section-by-section analysis of the legislation
First Section. This section provides independent authority
for the Speaker, on behalf of the House of Representatives, to
initiate or intervene in one or more civil actions alleging
that the President or other senior executive branch official
failed to faithfully execute the law with respect to his or her
implementation of the Patient Protection and Affordable Care
Act or any related provision of law. Any such suit may be filed
in the appropriate Federal court and may seek any appropriate
relief including declaratory relief under 28 U.S.C. Sec. 2201-
2202, equitable relief, or injunctive relief.
The use of the term ``other related provision of law'' is
intended to capture those provisions of law which, while not
part of the Affordable Care Act, were used by the executive
branch in its administration or implementation, such as
provisions appearing in appropriations Acts, the Internal
Revenue Code, or other similar provisions of law. It is not
intended to include provisions that are wholly unrelated to
implementation or administration of the Affordable Care Act.
Sec. 2. This section requires that the Speaker notify the
House of his decision to undertake a civil action pursuant to
this resolution.
Sec. 3. Subsection (a) provides that the Office of General
Counsel, acting at the direction of the Speaker, will represent
the House and is authorized to employ outside counsel and other
experts to assist with any legal action taken pursuant to this
resolution, if needed. Subsection (b) requires that the chair
of the Committee on House Administration submit reports for
printing in the Congressional Record on the aggregate amounts
of expenditures of the Office of General Counsel for outside
counsel or other experts not more than 30 days after the end of
each quarter.
changes in existing house rules made by the resolution, as reported
In compliance with clause 3(g) of rule XIII of the Rules of
the House of Representatives, the Committee finds that H. Res.
676 does not propose to repeal or amend a standing rule of the
House.
DISSENTING VIEWS
The Committee on Rules has a special responsibility to
consider House Resolution 676 carefully and ask whether
authorizing a series of lawsuits against the President of the
United States is a wise course for this body. Regrettably, the
Majority has failed to take this responsibility seriously,
choosing election-year politics over concern for what is best
for both the institution and our cherished constitutional
principles.
The proposed lawsuits are baseless, both in terms of their
substantive claim and in terms of the propriety of the House
filing them. They will accomplish nothing if they fail, do
considerable damage to our democracy if they succeed, and in
either case will waste millions of dollars of taxpayer money
with virtually no transparency or accountability. This
resolution authorizing the Speaker to file suit against the
President is disappointing, but not surprising.
The lawsuits are a political exercise that, if history is
our guide, will have little chance of surviving in the courts.
They are based on two false premises. First, that the President
acted outside of his authority with respect to the Affordable
Care Act, which he did not. Second, that a lawsuit against the
President authorized by a simple majority of one half of the
Congress is the correct way to resolve this political dispute,
which it certainly is not.
I. The Proposed Lawsuits Are About Politics, Not Rule of Law
Despite the Majority's claims that the lawsuit is intended
to defend against overreach by the Executive Branch, this
resolution is about garden-variety politics. The Republicans do
not like the Democratic President, and their party's electoral
base considers him illegitimate despite the fact that he was
elected and reelected by significant margins.
The Majority claims that this President is ignoring the
law, doing things the law does not allow and declining to do
things the law requires. In fact, the record shows that
President Obama is using the same flexibility that presidents
of both parties have long utilized to phase in new programs and
policies and ensure that statutes are implemented in workable,
sensible ways, minimizing disruption to individuals, families,
and businesses.
If this lawsuit were successful, the result would be to
implement the Affordable Care Act faster, which would be
contrary to everything the Majority has been fighting for the
past four years. Not a single Republican voted for the
Affordable Care Act, and they have spent four years trying to
repeal it, delay it, derail it, defund it, and even shut down
the government to stop it--and now they are suing the President
to implement it faster. The inconsistency is breathtaking.
II. The House of Representatives Is Not The Right Plaintiff
A threshold issue in any civil action is the requirement
that the plaintiff establish ``standing'' to sue--a requirement
derived from Article III of the Constitution. Saying that a
plaintiff has standing is essentially to say they are a party
in the proper position to bring the suit.\1\ If the plaintiff
cannot establish standing, the suit will be dismissed and the
court will not address the merits of the claims. The test for
standing established by the Supreme Court requires, among other
things, that the plaintiff establish a concrete and
particularized injury, and that it be likely the injury will be
redressed by a favorable decision.\2\ The House can satisfy
neither of these two elements of the test.
---------------------------------------------------------------------------
\1\Flast v. Cohen, 392 U.S. 83, 99-100 (1968).
\2\Dep't of Commerce v. House of Representatives, 525 U.S. 316 at
329 (quoting Allen, 468 U.S. at 751).
---------------------------------------------------------------------------
The case law supporting our contention that the House lacks
standing in this matter was outlined in detail by Walter
Dellinger in his testimony before our Committee on July 16.\3\
These precedents are also enumerated in the Dissenting Views of
the Democratic Members of the Judiciary Committee in the
committee report accompanying H.R. 4138, the ENFORCE the Law
Act of 2014.\4\ We urge our colleagues and anyone interested in
this matter to read them both. These precedents say
decisively--and with good reason--that Congress is not the
right plaintiff for this sort of civil action.
---------------------------------------------------------------------------
\3\Legislative hearing on a Committee Discussion Draft of H. Res.
__, Providing for authority to initiate litigation for actions by the
President inconsistent with his duties under the Constitution of the
United States: Hearing Before the H. Comm. on Rules, 113th Cong. (2014)
[hereinafter ``Committee Discussion Draft Hearing''] (statement of
Walter E. Dellinger III).
\4\H. Rep. No. 113-377, at 33 (2014).
---------------------------------------------------------------------------
A. THE INJURY REQUIREMENT OF STANDING
In a private discussion with Mr. Dellinger, he had a clear
and charming way of explaining why Congress does not have
standing in this sort of suit, and it is worth recounting here.
He explained to us that ``if Congress votes every farmer a
potato, and the President declines to give one of the farmers a
potato, the farmer has an injury and has grounds to sue. But we
have never had a system where Congress gets to sue the
President for failing to give that farmer a potato.'' Congress
can demonstrate no concrete, particularized injury, which is
essential to establish standing.
But perhaps the best authority for the inadequacy of the
House's injury was one of the Majority's own witnesses, Florida
International University College of Law professor Elizabeth
Price Foley. Foley wrote in a February article entitled ``Why
not even Congress can sue the administration over
unconstitutional executive actions'' that:
When a president delays or exempts people from a
law--so-called benevolent suspensions--who has standing
to sue him? Generally, no one. Benevolent suspensions
of law don't, by definition, create a sufficiently
concrete injury for standing. That's why, when
President Obama delayed various provisions of Obamacare
. . . his actions cannot be challenged in court . . .
Congress probably can't sue the president, either. The
Supreme Court has severely restricted so-called
``congressional standing,'' creating a presumption
against allowing members of Congress to sue the
president merely because he fails to faithfully execute
its laws.\5\
---------------------------------------------------------------------------
\5\Elizabeth Price Foley, Why not even Congress can sue the
administration over unconstitutional executive actions, The Daily
Caller, Feb. 7, 2014, http://dailycaller.com/2014/02/07/why-not-even-
congress-can-sue-the-administration-over-unconstitutional-executive-
actions/.
Professor Foley argued the opposite position before our
Committee on July 16.\6\ Apparently she has changed her mind.
---------------------------------------------------------------------------
\6\Committee Discussion Draft Hearing (statement of Elizabeth Price
Foley).
---------------------------------------------------------------------------
A reminder of the fact that the House lacks the requisite
injury to bring this suit came on July 21 when U.S. District
Court Judge William C. Griesbach of Wisconsin dismissed a case
brought by U.S. Senator Ron Johnson regarding how Members of
Congress and their staffs would get health care.\7\ Senator
Johnson's allegation was that the Office of Personnel
Management incorrectly applied the Affordable Care Act. Judge
Griesbach dismissed the case for a lack of standing on the part
of the Senator. The judge properly wrote that:
---------------------------------------------------------------------------
\7\Johnson v. U.S. Office of Personnel Management, No. 14-C-009,
(E.D. Wis. July 21, 2014).
Under our constitutional design, in the absence of a
concrete injury to a party that can be redressed by the
courts, disputes between the executive and legislative
branches over the exercise of their respective powers
are to be resolved through the political process, not
by decisions issued by federal judges.\8\
---------------------------------------------------------------------------
\8\Id. at 6.
He is precisely right, and more than two hundred years of
Supreme Court precedent agree.
B. THE FAULTY THEORY THAT THE HOUSE'S INJURY IS VOTE NULLIFICATION
The Republican witnesses at our hearing essentially argued
that, even if Congress is not injured by the specific
consequences of the way President Obama has implemented the
ACA, the fact that he is phasing in certain provisions to which
the statute assigned specific effective dates somehow
constitutes a ``nullification'' of the votes of Members of
Congress. That is, their votes are rendered meaningless. They
believe this vote nullification is an injury in the sense that
the President is intruding on the legislative power that the
Constitution assigns to Congress.\9\
---------------------------------------------------------------------------
\9\Committee Discussion Draft Hearing (statement of Elizabeth Price
Foley); Committee Discussion Draft Hearing (statement of Jonathan
Turley).
---------------------------------------------------------------------------
But it is simply not the case that the President has in any
way nullified Congress' legislative power. Vote nullification,
properly understood, requires that Congress is impeded in
carrying out its Constitutional powers to pass legislation,
appropriate money, conduct oversight and investigations,
confirm nominees, declare war, impeach, etc.\10\ Speaker
Boehner is not alleging that the President stopped us from
doing any of those things. The Speaker is proposing to sue the
President because the President has not executed the law in
precisely a certain way.\11\ That is an allegation that the
President has not done his Article II job correctly, not that
he has interfered with Congress doing our constitutional duty
under Article I.
---------------------------------------------------------------------------
\10\Raines v. Byrd, 521 U.S. 811, 829 (1997).
\11\Memorandum from Hon. John Boehner, Speaker, U.S. H.R., to House
Colleagues, ``[T]hat the Laws Be Faithfully Executed . . .'', (Jun. 25,
2014) (on file with H. Comm. on Rules, Democratic Staff).
---------------------------------------------------------------------------
C. DISTINGUISHING CASES WHERE CONGRESS PROPERLY HAS STANDING
Members of the Majority and their witnesses at our July 16
hearing repeated the argument several times that courts have
recognized Congressional standing, such as when the subject of
a Congressional subpoena has failed to comply and some entity
in the Legislative Branch has sued to compel compliance.\12\
---------------------------------------------------------------------------
\12\Committee Discussion Draft Hearing (statement of Elizabeth
Price Foley); Committee Discussion Draft Hearing (statement of Jonathan
Turley).
---------------------------------------------------------------------------
It is true that courts have recognized standing in such
instances,\13\ but it is simply not the same as Speaker
Boehner's proposed lawsuits against the President for alleged
violations of the ``take care'' clause. If someone fails to
comply with a subpoena issued by the House, the House does have
a concrete, particularized injury. The House is suing to
vindicate its right to perform its oversight and information-
gathering duties that are incidental to its own Article I
legislative powers. The lawsuits authorized by H. Res. 676 are
not based on such an injury, and are fundamentally different in
that critical respect.
---------------------------------------------------------------------------
\13\See, e.g., Comm. on the Judiciary, U.S. House of
Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008).
---------------------------------------------------------------------------
D. THE HOUSE IS ONLY HALF OF THE CONGRESS
It is also important to note that the House of
Representatives is not the Congress. Congress is the branch of
government that has the legislative power. Even if the
legislative power had been nullified (which it has not), the
Congress would be the institution with the injury, and with a
cause to sue. This idea that the House can go it alone and
assert a legal claim that belongs to the entire Congress is
fatally flawed: the Senate has not authorized such a lawsuit
against the President. The dividing line in this frivolous
lawsuit is not the Legislative versus the Executive. It is
Republican versus Democrat.
E. THE REDRESSABILITY REQUIREMENT OF STANDING
Standing also requires that it be likely the injury will be
redressed by a favorable decision.\14\ By the time any suit
authorized by this resolution is filed, considered in DC
District Court, appealed, and decided by the DC Circuit and/or
the Supreme Court, the ACA delays that are the subject of the
suit will likely have concluded. Barack Obama may even no
longer be President at that time. The consequence of this is,
whatever injury Speaker Boehner claims the House has suffered
is unlikely to be redressed no matter what the various courts
decide.
---------------------------------------------------------------------------
\14\Dep't of Commerce, 525 U.S. at 329 (quoting Allen, 468 U.S. at
751).
---------------------------------------------------------------------------
III. The Courts Are Not the Right Forum for This Political Dispute,
Because Congress Has Its Own Weapons
Because the Constitution gives tools to each of the three
coequal branches of the Federal government to assert its
legitimate powers--we learn in grade school that these are
called ``checks and balances''--courts are understandably wary
of wading into disputes between the Legislative Branch and the
Executive Branch, the so-called ``political branches.''
This principle is sometimes referred to as the ``political
question doctrine,'' and concerns whether or not courts are the
proper forum in which to settle certain kinds of disputes. For
example, in one notable case, the President wanted to
unilaterally terminate a treaty with a foreign government and a
Senator sued arguing that such termination requires a vote of
the Senate. The Supreme Court ruled that the case should be
dismissed, with Justice Rehnquist explaining that the Court was
being ``asked to settle a dispute between coequal branches of
our Government, each of which has resources available to
protect and assert its interests, resources not available to
private litigants outside the judicial forum.''\15\
---------------------------------------------------------------------------
\15\Goldwater v. Carter, 444 U.S. 996, 1004 (1979).
---------------------------------------------------------------------------
As with the issue of standing, we need not give a lengthy
recitation of all the relevant precedents concerning the
nonjusticiability of political questions, and we instead refer
readers to Mr. Dellinger's July 16 testimony,\16\ as well as
the Dissenting Views in the committee report for the ENFORCE
Act.\17\ But essentially, among the factors that the Court has
said characterize a political question is whether the
Constitution says that one of the other branches is supposed to
resolve the issue that a party is asking a judge to
resolve.\18\
---------------------------------------------------------------------------
\16\Committee Discussion Draft Hearing (statement of Walter E.
Dellinger III).
\17\H. Rep. No. 113-377, at 33 (2014).
\18\Baker v. Carr, 369 U.S. 186, 217 (1962).
---------------------------------------------------------------------------
The President's responsibility and authority to execute the
laws and ``take Care that the Laws be faithfully executed'' are
committed to him explicitly by Article II.\19\ Likewise,
Article I of the Constitution gives to Congress powers such as
those to: legislate (including to repeal statutes or disapprove
of regulations, and including the incidental authority to
conduct oversight and investigations); impeach; override
vetoes; borrow money; regulate commerce; declare war;
appropriate (and therefore condition the appropriation of)
money; and, make all laws that are necessary and proper for
carrying out their other powers.\20\ The Senate also has the
power to ratify treaties and confirm presidential
appointees.\21\ Each of these powers has been used at one time
or another to check the power of the President.
---------------------------------------------------------------------------
\19\U.S. CONST. art. II, Sec. Sec. 1, 3.
\20\U.S. CONST. art. I, Sec. Sec. 1, 8.
\21\U.S. CONST. art. II, Sec. 2.
---------------------------------------------------------------------------
The Framers of the Constitution as well as the courts ever
since have said that these powers, and not civil actions
brought in court, are the instruments with which these two
political branches are to settle disputes between them.
Justice Scalia, joined by Chief Justice Roberts and Justice
Thomas, appears to express support for our contention that this
lawsuit has no basis in precedent, writing that the framers of
the Constitution emphatically rejected a ``system in which
Congress and the Executive can pop immediately into court, in
their institutional capacity, whenever the President . . .
implements a law in a manner that is not to Congress's
liking.''\22\
---------------------------------------------------------------------------
\22\U.S. v. Windsor, 133 S. Ct. 2675, 2704 (2013) (Scalia, J.,
dissenting).
---------------------------------------------------------------------------
Justice Scalia's view that the Constitution gives Congress
a panoply of tools to check executive power--and that lawsuits
are not one of them--truly does go back all the way to the
Founding Fathers. In Federalist 58, James Madison tells us:
The House of Representatives cannot only refuse, but
they alone can propose, the supplies requisite for the
support of government. They, in a word, hold the purse
that powerful instrument by which we behold, in the
history of the British Constitution, an infant and
humble representation of the people gradually enlarging
the sphere of its activity and importance, and finally
reducing, as far as it seems to have wished, all the
overgrown prerogatives of the other branches of the
government. This power over the purse may, in fact, be
regarded as the most complete and effectual weapon with
which any constitution can arm the immediate
representatives of the people, for obtaining a redress
of every grievance, and for carrying into effect every
just and salutary measure.\23\
---------------------------------------------------------------------------
\23\The Federalist No. 58 (James Madison).
In fact, one of the most dangerous possible consequences of
this lawsuit would be an unprecedented aggrandizement of the
Judicial Branch. If Congress starts relying on judges, instead
of the tools the Constitution actually gives us to check
executive power, we will effect a transfer of a great deal of
our authority to the judiciary. That is quite a serious matter
and not a risk to be taken lightly, as the Majority appears to
be doing with this highly-political lawsuit authority.
IV. The Underlying Claim Concerning President Obama's Implementation of
the ACA is Unfounded
The testimony of Mr. Simon Lazarus of the Constitutional
Accountability Center, and formerly of the Carter White
House,\24\ lays out clearly why President Obama's
implementation of the Affordable Care Act has been consistent
with the past practice of other presidents (in the areas of tax
enforcement, environmental law, health care, and more), with
statutory grants of authority, and with case law.\25\ As Mr.
Lazarus explained, courts have given wide latitude to
regulatory agencies; the tax code contains a provision that has
long been interpreted as giving the IRS flexibility, including
flexibility to phase-in or delay under certain circumstances
(such as in the case of the tax penalty underlying the employer
mandate); and, whether a delay is due to scarcity of resources
or justified as an exercise of prosecutorial or administrative
discretion, no court has ever ruled that an agency missing a
rulemaking deadline by Congress is a violation of the ``take
care'' clause.
---------------------------------------------------------------------------
\24\Committee Discussion Draft Hearing (statement of Simon
Lazarus).
\25\H. Rep. No. 113-377, at 33 (2014).
---------------------------------------------------------------------------
In one of former Solicitor General Dellinger's analogies
explaining a nuanced legal point, he compared the
Administration's delays of the ACA to a situation in which:
If North Carolina were to adopt a new requirement for
automobile equipment, and it turns out that there are
not enough mechanics in the county to get every car
fitted, and the sheriff says to his deputies and he
announces publicly, we are not going to ticket anybody
for the first few months, just give people warnings.
Effective date is July 1, but there are not enough
mechanics. That is essentially what is going on here.
And as Mr. Lazarus showed, there has been a process of
the administration meeting with business that says we
can't meet these deadlines, it is not practical. Is
that within the scope of the authority to defer it?\26\
---------------------------------------------------------------------------
\26\Committee Discussion Draft Hearing (statement of Walter E.
Dellinger III).
Mr. Lazarus also provided a detailed discussion of the
meaning of the precise words in the ``take care'' clause, and
an account of the legislative history of the clause's drafting
by the Founding Fathers. His remarks on this subject are worth
reading in full, as they get to the very core of the faulty
---------------------------------------------------------------------------
premises of this lawsuit. Briefly, he explained that:
[E]xercising presidential judgment in carrying laws
into execution is precisely what the Constitution
requires. It is precisely what the framers expected,
when they established a separate Executive Branch under
the direction of a nationally elected President, and
charged him to Take Care that the Laws be Faithfully
Executed.\27\
---------------------------------------------------------------------------
\27\Committee Discussion Draft Hearing (statement of Simon
Lazarus).
---------------------------------------------------------------------------
V. These Partisan Lawsuits Are a Waste of Taxpayer Money and the
House's Precious Time
Given the flaws in the Majority's proposal, it is clear
that this resolution and the millions of dollars it authorizes
are a tremendous waste of taxpayer money. We attempted on
several occasions to obtain information from the Majority about
the projected cost of their lawsuit.\28\ Their responses have
provided no useful information.\29\
---------------------------------------------------------------------------
\28\E.g., Letter from Hon. Louise Slaughter, Ranking Min. Member,
H. Comm. on Rules, et al., to Hon. Pete Sessions, Chairman, H. Comm. on
Rules (July 17, 2014), available at http:// democrats.rules.house.gov/
sites/democrats.rules.house.gov/files/documents/113/OJ/Lawsuit/
Rules_Chairman_Sessions.pdf.
\29\Letter from Hon. Pete Sessions, Chairman, H. Comm. on Rules, to
Hon. Louise Slaughter, Ranking Min. Member, H. Comm. on Rules, et al,
(July 23, 2014), available at http:// louise.house.gov/uploads/
7%2024%2014%20PS%20to%20Rules%20Minority%20Lawsuit%20 SIGNED%20(2).pdf.
---------------------------------------------------------------------------
Likewise, Ranking Member Brady on the Committee on House
Administration wrote to the Speaker,\30\ asking for regular
order and transparency with the use of taxpayer money. The
polite reply he received from Chairwoman Candice Miller\31\
also gave no information whatsoever.
---------------------------------------------------------------------------
\30\Letter from Hon. Robert A. Brady, Ranking Min. Member, H. Comm.
on H. Admin., to Hon. John A. Boehner, Speaker, U.S. H.R. (July 14,
2014), available at http://democrats.cha.house.gov/sites/
democrats.cha.house.gov/files/Brady_Boehner%20Letter_0.PDF.
\31\Letter from Hon. Candice S. Miller, Chairman, H. Comm. on H.
Admin., to Hon. Robert A. Brady, Ranking Min. Member, H. Comm. on H.
Admin. July 15, 2014), http://democrats.cha.house.gov/sites/
democrats.cha.house.gov/files/
miller%20response%20to%20speaker%20letter%2015%20july%202014.pdf.
---------------------------------------------------------------------------
In our markup, the Republicans offered a last-minute
amendment which required disclosure of the cost of their
lawsuit once each quarter. However, this amendment essentially
restates the current disclosure rules for House expenditures.
We offered an amendment to require a weekly disclosure of
the amount spent on the lawsuit. If the Majority insist on
going forward with this suit, the taxpayers--who are paying the
bill--and the Membership of this House--in whose name they are
suing--deserve to know how many millions of dollars are being
wasted on high-priced, politically-connected Washington law and
lobbying firms. Rules Committee Republicans rejected our
amendment on a party-line vote.
We offered an amendment that would have required the House
to pay for the lawsuit by redirecting funds from another
political stunt--the Benghazi Select Committee. We now know
that the Republicans plan to spend a minimum of $3.3 million on
the Benghazi Select Committee just for the second half of this
year\32\ (on top of the estimated $79 million it cost taxpayers
to hold more than 50 votes to repeal or undermine the
Affordable Care Act,\33\ and the $24 billion the government
shutdown cost the economy\34\). This amendment was also voted
down on party lines.
---------------------------------------------------------------------------
\32\Paul Singer, House Benghazi panel may cost $3 million this
year, USA Today, July 7, 2014, http://www.usatoday.com/story/news/
politics/2014/07/07/benghazi-committee-33-million-republicans/
12301935/.
\33\Calculations based on reporting of CBS Evening News: Cost to
Taxpayers (CBS television broadcast July 11, 2013).
\34\Melanie Hicken, Shutdown took $24 billion bite out of economy,
CNN.com (Oct. 17, 2013), http://money.cnn.com/2013/10/16/news/economy/
shutdown-economic-impact/.
---------------------------------------------------------------------------
One of our amendments required disclosure of which programs
and budgets will be reduced to pay for the lawsuit. After all,
it could very well be funded through cuts to the Veterans
Affairs Committee, the Intelligence Committee, the Government
Accountability Office, or the Capitol Police. Knowing which
legislative functions will be curtailed in order to finance
this lawsuit is an important consideration for Members deciding
whether it is worth it, and how to vote. But once again our
amendment was defeated.
We further moved to require disclosure of all contracts
with lawyers and consultants 10 days before they are approved.
Since Members of this House are supposedly the plaintiffs in
this lawsuit, there is no reason for the contract with our own
lawyers to be a secret to us. When Republicans used taxpayer
money to pay a Washington law firm $2.3 million to defend the
discriminatory Defense of Marriage Act,\35\ for example, we
learned later that every hour one of their attorneys worked
cost the taxpayers $520.\36\ That translates to a salary of
just over a million dollars a year if someone works a 40-hour
work week. If we are spending that kind of money, we ought to
do it out in the open. Republicans on the Committee unanimously
voted against this proposal, as well.
---------------------------------------------------------------------------
\35\Derek Wallbank, Boehner's House: $2.3 Mln Defending DOMA in
Losing Court Fight, Bloomberg (June 26, 2013), http://go.bloomberg.com/
political-capital/2013-06-26/boehners-house-2-3-mln-defending-doma/.
\36\Contract for Legal Services by and between Kerry W. Kircher,
General Counsel, U.S. H.R., and King & Spalding (Apr. 14, 2011), http:/
/www.politico.com/static/PPM176_110419_legal_contract.html.
---------------------------------------------------------------------------
We offered an amendment prohibiting the hiring of any law
firms or consultants who lobby Congress at all, because if they
lobby Congress for a living, Congress should not also be paying
them. Then an amendment prohibiting the hiring of law firms or
consultants who lobby specifically on Affordable Care Act
implementation, or who have any financial stake in
implementation of the ACA, because it would be a conflict of
interest. Both were also rejected on a party-line vote, even
though these amendments were modeled on provisions in the
Republicans' own contract with their DOMA lawyers.
Since this resolution was drafted and introduced by the
Majority--with no consultation or involvement by the Minority--
we moved to require that the House's lawyers explain to Members
of the House the likelihood of success in this lawsuit, and how
they think they will overcome the legal obstacles presented by
Supreme Court precedent that says these sorts of cases cannot
even be considered. This was also voted down, as was an
amendment to ensure that this lawsuit does not seek to prevent
implementation of the Affordable Care Act's provisions relating
to: (1) young adult coverage; (2) benefits for women; (3)
protections for pre-existing conditions; (4) prescription
discounts for seniors that close the ``donut hole'' in
Medicare; or, (5) small business tax credits.
We offered an amendment to ensure that this lawsuit does
not target people in the military, veterans, or civil
servants--any one of whom would experience significant burdens
and likely rack up large legal bills defending themselves in
court. Our friends in the Majority objected that causing such
dislocation is not at all the intended effect of the lawsuit,
but they still refused to support making it a requirement.
We also offered an amendment which required the House to
consider the bipartisan comprehensive immigration reform bill,
H.R. 15. The Republicans rejected it even though it would bring
in millions of dollars to pay for this lawsuit and then bring
in hundreds of billions more to take a big chunk out of our
budget deficit.\37\ This proposal was a perfect example of what
this House should be doing with its time instead of wasting it
on this lawsuit, but the Republicans disagreed.
---------------------------------------------------------------------------
\37\Letter from Douglas W. Elmendorf, Director, Cong. Budget
Office, to Hon. Nancy Pelosi, Min. Leader, U.S. H.R. (March 25, 2014),
http://www.cbo.gov/sites/default/files/cbofiles/attachments/hr15.pdf.
---------------------------------------------------------------------------
Finally, we offered an amendment to strike the Republicans'
last-minute addition to the resolution--a change made after our
witnesses had testified about the resolution--expanding the
already-broad scope of the authorized lawsuits to ``any other
related provision of law.'' We still do not understand exactly
how broad this revised authorization is or what exactly makes a
provision of law ``related'' to the ACA. In other words, we are
no longer able to say what the resolution does and what the
Speaker might choose to sue over.
VI. Divergence From Regular Order
We are concerned about the divergence from regular order in
the House's consideration of this resolution. An entire
committee of jurisdiction, the Committee on House
Administration, is failing to hold a single hearing or
markup\38\ despite requests from Committee Members.\39\ The
Majority also made significant changes to the text of the
resolution after our Committee had held its only hearing
featuring outside expert witnesses. And, we anticipate that H.
Res. 676 will be considered on the floor under a completely
closed rule that will deny any Member of either party the
opportunity to offer amendments on the floor.
---------------------------------------------------------------------------
\38\Letter from Hon. Candice S. Miller, Chairman, H. Comm. on H.
Admin., to Hon. Pete Sessions, Chairman, H. Comm. on Rules (July 24,
2014), http://democrats.cha.house.gov/sites/democrats.cha.house.gov/
files/
CHA%20letter%20to%20Rules%2024%20July%202014%20president%20%20lawsuit.pd
f#overlay-context=user.
\39\Letter from Hon. Robert A. Brady, Ranking Min. Member, H. Comm.
on H. Admin., to Hon. Candice S. Miller, Chairman, H. Comm. on H.
Admin. (July 24, 2014), http://democrats.cha.house.gov/sites/
democrats.cha.house.gov/files/
final%20meeting%20request%2024%20july%202014.pdf#overlay-context=user.
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VII. Conclusion
We agree with Harvard Law professor and former Assistant
Attorney General under President George W. Bush, Jack
Goldsmith, who writes that:
The framers likely would have been surprised . . .
that Congress as an institution would seek to vindicate
its own institutional interests by suing the President
in an Article III court. They would have expected
instead that Congress would use its own political tools
to fight back politically to preserve its
prerogatives.\40\
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\40\Jack Goldsmith, Suing the President for Executive Overreach,
Lawfare (June 30, 2014), http://www.lawfareblog.com/2014/06/suing-the-
president-for-executive-overreach/.
This resolution and the lawsuits it authorizes are what
conservative writer and former Justice Department official
Andrew C. McCarthy called ``a classic case of assuming the pose
of meaningful action while in reality doing nothing.''\41\ It
is a partisan, one-House political gimmick. This Republican-led
House, which refuses to do its own job, is instead suing the
President for doing his. To yet again quote Mr. McCarthy,
``sure, the leader of the opposition party controlling the
House may well be able to pass an `explicit House authorization
for the lawsuit' Boehner anticipates filing. After all, how
hard is it to get a bunch of congressional Republicans to agree
that punting to the courts is easier than rolling up their
sleeves and doing their jobs?''\42\
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\41\Andrew C. McCarthy, Boehner Issues Memo Explaining His Feckless
Plan to Sue Obama, National Review Online (June 25, 2014), http://
www.nationalreview.com/corner/381244/boehner-issues-memo-explaining-
his-feckless-plan-sue-obama-andrew-c-mccarthy.
\42\ Id.
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For all of these reasons, we must dissent.
Louise M. Slaughter,
Ranking Member.
James P. McGovern,
Member of Congress.
Alcee L. Hastings,
Member of Congress.
Jared Polis,
Member of Congress.